The Central government’s advisory to private satellite TV channels and letter to various departments to avoid using the term ‘Dalit’ and use ‘Scheduled Castes’ instead, in accordance with the orders of the Bombay high court and the Madhya Pradesh high court respectively, are in direct contravention of numerous judgements of the Supreme Court where the term Dalit has been used to refer to Scheduled Castes. Curiously, the sources of the circular – the orders of the Bombay and Madhya Pradesh high courts – are also in conflict with the judgements of the Supreme Court.

A plain reading of the order of the Madhya Pradesh high court dated January 15, 2018 reveals that when the petitioner prayed the high court for prohibition of the term Dalit in governmental and non-governmental organisations and imposition of penal provisions for use of the term in the public, he was directed by the court to produce documents, rules, regulations or correspondence of the Union government or state government using the term to depict the scheduled castes and scheduled tribes. However, despite using three opportunities given by the court, he could not produce any document except one communication of the chief secretary of the Haryana government to other departments under his control informing the ban of the use of the term Dalit as interchangeable with scheduled castes.

Interestingly, the Madhya Pradesh high court only asked for documents and materials of the government where the term Dalit is being used in place of scheduled castes. But it did not so much as check previous Supreme Court judgements to see if the term has been used as a substitute for scheduled castes. The division bench of the Madhya Pradesh high court passed the order that “We have no manner of doubt that Central government/state government and its functionaries would refrain from using the nomenclature Dalit for the members belonging to scheduled castes and scheduled tribes as the same does not find mention in the Constitution of India or any statute.” So the only basis for the Madhya Pradesh high court banning the term Dalit was that it is not mentioned in the constitution or any statute.

But the constitutional provision says otherwise. As per Article 141 of the constitution, “The law declared by the Supreme Court shall be binding on all courts within the territory of India.” Such law is established by the apex court by delivering judgements, and those judgements lay down the law for the lower judiciary and the whole country. In 1981, a seven-judge bench of the Supreme Court in S.P. Gupta vs President of India observed that society is pulsating with urges of gender justice, Dalit justice, and equal justice between chronic equals. In invoking the idea of ‘Dalit justice’ the constitution bench of the Supreme Court has given legitimacy to the usage of the term Dalit. In 1997, in the Ashok Kumar Gupta, Vidyasagar vs State of Uttar Pradesh, the Supreme Court in its judgement, while using the term Dalit, observed “The historical evidence of disabilities worked against Dalits and Tribes received acknowledgement in Article 17 which provides for abolition of untouchability.” It is worth pointing out here that Article 17 nowhere mentions the term Dalit and yet the Supreme Court in 1997 used it to underline the disabilities suffered by Dalits because of the practice of untouchability. In January 2010, the Supreme Court in Harjinder Singh vs Punjab State Warehousing Corporation observed, “Society is a dynamic device to mitigate the sufferings of the poor, weak, Dalit, tribals and deprived sections of society.”

That these judgements have used the term Dalit in substantive sections give validity to the usage of the term in legal sense. Such judgements are laws laid down by the Supreme Court for the lower judiciary and for the entire country. Without relying on such judgements, the Madhya Pradesh high court passed the order in 2018 preventing the use of the term simply because it is not mentioned in the constitution and statute. By this logic, many terms used in day to day life and not enshrined in the constitution cannot be used, for instance Jai Hind or Bharat Mata Ki Jai, which are not mentioned in the constitution. Yet these terms are used, and those who refuse to use them are even being frowned upon and not considered patriotic enough.

There is a huge gap between law and life. The constitution being the fundamental law of the country assumes an exalted place over all forms of law and statute. It does not mean that the constitution has closely corresponded to the realities of life, which are very complex and cannot, and should not, be seen through the prism of law and jurisprudence only.

The term Dalit is one of the several terms used to denote the lower castes during various movements for the annihilation of caste. Whereas Jyotiba Phule, the doyen of anti-caste movement, used the term Dalit, Gandhi used the terms Antyaja and Bhangi in his writings until the 1930s and shifted to Harijan later on. Swami Vivekananda used the term pariahand advocated their social and educational advancement even at the cost of high castes. He also disapproved of the term ‘depressed castes’ used by British colonial authorities to refer to the so called untouchables and other underprivileged castes. Rather, he used the term ‘suppressed castes’ to underline their suppression at the hands of high castes.

Gandhi’s term, Harijan, became the defining term throughout the freedom struggle and shaped the identity of the exploited castes even as it was opposed by many including Ambedkar, who considered it as contemptuous of the suppressed castes robbing them of their real identity rooted in misery and suffering. Ambedkar used the term Ati Shudra because of graded social inequality inherent to Hinduism and caste system. Upon realising that people belonging to exploited castes were disillusioned with the terms being used to define their identity, Gandhi also accepted the term Dalit. “From now on, we will describe Antyajas too as dalit,” Gandhi wrote in a 1927 edition of Navjivan weekly.

In 1931, Gandhi wrote in Navjivan that the term Dalit popularised by Swami Shraddhanand was found unacceptable by some people when in many quarters people expressed displeasure against it. As long as the poison of untouchability existed in society, Gandhi wrote, any name that might be given would probably come to be disliked after some time. The right thing to do, Gandhi argued, was to get rid of that poison itself. “Though it is thus necessary to attack the root cause, if a better word than Antyaja or Dalit occurs to anyone he may send it to me,” he wrote.

While Gandhi’s exhortation to people to use another term affirmed his broad outlook to accept any term, it also testified to the dynamism of such movements that produce new ideas, terminologies and thoughts to keep them in tune with the temper of the times. In fact, when Gandhi received a letter in 1946 stating that the usage of the term Harijan instilled in the minds of the so called untouchables a feeling of lowly status and subservience, he wrote in Harijan that the term Harijan denoted some kind of sanity and purity and aimed at replacing prevailing terms such as untouchable, Dalit and pariah. He lamented that the British government classified some castes as scheduled castes by putting them in a schedule and perplexed everyone because of the absurdity of its decision.

It is thus clear that the terms used throughout the movements against caste and untouchability have emerged from the churning of those movements and not imposed by the government. The Dalit movement of the 1970s is a case in point, which made the term Dalit acceptable across the country; even the government in a 1982 circular instructed officials not to use Harijan as a substitute for scheduled castes. Nobody seemed to have an objection to that circular.

Today, the movement for annihilation of caste is facing intense challenges from all quarters; atrocity against Dalits is rising; and the government is faltering in safeguarding legislations to protect the constitutionally enshrined rights of the Dalits. It is tragic, therefore, to see the government issuing advisories not to use the term Dalit. The term represents, literally and figuratively, a substantive aspect of the Dalit movement and larger subaltern consciousness and gives meaning and significance to the suffering of the oppressed community like no other.

The government’s advisory, which is in conflict with the numerous judgements of the Supreme Court – wherein the term Dalit has assumed some kind of legal sanctity – negates law itself, which Ambedkar called the greatest disinfectant against inequality. It would be prudent on the part of the government to rescind the advisory or any other instruction which is against the very nomenclature Dalit, which is not inconstant with any law and which is the anchor of the movement for establishing a society based on liberty, equality and fraternity.

S.N. Sahu served as OSD and press secretary to former President of India K.R. Narayanan.